Released ruling finds for Tanner

It reveals that judge called investigation of the state attorney illegal

April 11, 2007|By Ludmilla Lelis, Sentinel Staff Writer

An appellate court released a previously secret court ruling Tuesday that called an investigation of State Attorney John Tanner illegal and removed disparaging comments about him from a grand-jury report.

The 5th District Court of Appeal decided to release the March 12 order written by a Flagler County circuit judge who in summarizing the case quoted from the Grateful Dead about what a "long, strange trip this has been."

In the ruling by Judge Kim C. Hammond, Tanner won nearly all of his legal points, including his main contention that the investigation of him by Jacksonville-based State Attorney Harry Shorstein and a Duval County grand jury was illegal.

Shorstein and the grand jury started investigating Tanner last year after the governor's office ordered Shorstein to take over Tanner's investigation of the Flagler County Inmate Facility, a probe Tanner had undertaken at the request of a Flagler County grand jury.

Tanner, prosecutor for the 7th Judicial Circuit, had stepped down from that probe after the local police union and the Flagler County sheriff called his jail investigation a "witch hunt" motivated by complaints by his daughter, Lisa Tanner, that she was abused at the jail after she was arrested in 2005.

The Duval County grand jury finished its investigation of both the jail and Tanner in December, but its report has been kept secret while Tanner challenged its contents. Tanner is now willing to open sections of the report pertaining to the jail investigation, but Shorstein opposes that because he believes the entire report should be released publicly.

In his order, Hammond decided that Gov. Jeb Bush, in ordering Shorstein to investigate the jail, did not give him the authority to investigate Tanner. Hammond wrote, "This Court finds it is a broad jump, an illegal jump, to take a mandate to investigate an inmate facility and the officers who worked there, and extend it to a state attorney.''

Tanner hailed Hammond's decision.

"This matter was about the abuse, mistreatment and humiliation of detained citizens at the Flagler County jail," Tanner said in a statement. "This was not about me, but was about bringing to an end, the mistreatment of helpless citizens."

Shorstein has appealed Hammond's ruling to the 5th District Court. On Tuesday, he said he strongly disagreed with Hammond and called some of the judge's comments "gratuitous." The court must still decide on Shorstein's appeal.

"Those comments are improper because only the grand jury heard the evidence and a judge cannot substitute his findings for that of the grand jury," Shorstein said.

Among his comments, Hammond addressed the question of whether Tanner's jail investigation was motivated by his daughter's treatment, as the police union claimed. The judge noted that Tanner started the probe when a Flagler County grand jury recommended such an investigation. By that time, it was already 14 months after Lisa Tanner's alleged abuse incident.

"Clearly if State Attorney Tanner intended to `go after' the Sheriff's Office he could have done so much earlier and on his own authority," Hammond wrote.

Later on, as Shorstein embarked on his investigation, Tanner repeatedly argued that the investigation wasn't legal, and Hammond agreed. The judge pointed to the actual wording from the governor's orders, which didn't specify that Shorstein should investigate Tanner.

When the question originally came up last year, Shorstein asked the governor's office to clarify the issue and got a letter back that read: "You may undertake this inquiry if the facts, law, and code of conduct recommend it."

In his ruling, Hammond decided that letter did not carry enough legal weight and that as a prosecutor following a special governor's assignment, Shorstein should have only investigated the Flagler jail, which the governor did specifically authorize.